THE IMPACT OF HEDGING ON DAMAGES IN OIL, COMMODITY AND SHIPPING CASES THANK YOU FOR INVITING ME

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1 THE IMPACT OF HEDGING ON DAMAGES IN OIL, COMMODITY AND SHIPPING CASES THANK YOU FOR INVITING ME ICMA COPENHAGEN SEPTEMBER 2017 CATHERINE JAGO FCIARB CJH ENERGY LIMITED

2 THE IMPACT OF HEDGING ON DAMAGES

3 HEDGING HAS HAD A BAD PRESS AND IN MY EXPERIENCE IS MUCH MISUNDERSTOOD EFFECTIVE HEDGING IS NOT BETTING RISKY RECKLESS SPECULATIVE SEPARATE FROM PHYSICAL COMMODITY PRICE RISK

4 My favorite film Trading Places demonstrates how speculating on the futures market can bring incredible financial rewards, especially if one trades on the back of Fake News! It led to the Eddie Murphy Rule forming part of the Dodd Frank Wall Street Reforms in 2010 BUT I AM TALKING ABOUT HEDGING NOT SPECULATING

5 A TRADER HOPES THAT EVERY CARGO WILL MAKE HIM MONEY BUY LOW SELL HIGH! Price Purchase Pricing Dates Sale Pricing Dates Time CJH Energy Ltd 5

6 BUT HE COULD FACE A LOSS IF THE MARKET MOVES AGAINST HIM Price Purchase Pricing Dates Sale Pricing Dates Time CJH Energy Ltd 6

HEDGE PRINCIPLES ARE TO TAKE AN EQUAL AND OPPOSITE POSITION IN THE HEDGE TO THE PHYSICAL WHAT A HEDGER GAINS ON THE ROUNDABOUT IS LOST ON THE SWINGS (IN A PERFECT

7 HEDGE PRINCIPLES ARE TO TAKE AN EQUAL AND OPPOSITE POSITION IN THE HEDGE TO THE PHYSICAL WHAT A HEDGER GAINS ON THE ROUNDABOUT IS LOST ON THE SWINGS (IN A PERFECT HEDGE ) OFTEN REFERRED TO AS LOCKING IN A PROFIT BUT A HEDGE CAN BECOME SPECULATIVE IF IT IS NO LONGER LINKED TO A PHYSICAL POSITION LONG OR SHORT CJH Energy Ltd 7

8 THE IDEA OF THE HEDGE IS IF YOU LOSE MONEY ON YOUR PHYSICAL YOU MAKE MONEY ON YOUR HEDGE Price Sell Hedge Make gain on hedge Buy Buy Physical Sell Make Loss on physical Time CJH Energy Ltd 8

9 Price BUT A HEDGE ALSO MEANS YOU LOSE MONEY ON HEDGE IF YOU GAIN ON YOUR PHYSICAL Sell Hedge Buy Make Loss on hedge Buy Physical Sell Make gain on physical Time CJH Energy Ltd 9

10 ANY CLAIM ASSOCIATED WITH A CHANGE IN THE VALUE OF A COMMODITY MAY BE REDUCED OR INCREASED BY HEDGING PIRATE ATTACK OWNER REFUSES TO DISCHARGE WITHOUT ORIGINAL DOCUMENTS CONTAMINATION NON PERFORMANCE DELAY ON LOADING OR DELIVERY CJH Energy Ltd 10

11 BECAUSE HEDGING CAN SUBSTANTIALLY INCREASE OR DECREASE QUANTUM, ISSUES AROUND HEDGING SHOULD BE CONSIDERED EARLY IN DISPUTES FORESEEABILITY/EXCLUSION/CAUSATION/REMOTENESS MITIGATION INSURANCE OVERPAY SETTLEMENT CJH Energy Ltd 11

12 A FEW REPORTED DECISIONS CLARIFY THE TREATMENT OF HEDGING LOSSES AND GAINS WHERE BOTH PARTIES ARE TRADERS GLENCORE V TRANSWORLD DEMONSTRATED THE IMPORTANCE OF MITIGATING USING HEDGING TO DAMAGE CLAIMS UNDER CONTRACTS FOR COMMODITY SALES ADDAX V ARCADIA FOUND THAT BOTH PARTIES WERE SOPHISTICATED OIL TRADERS AND THEREFORE FORESEEABILITY OF HEDGING WAS NOT AN ISSUE CHOIL V SAHARA CONFIRMED HEDGING LOSSES ARE CLAIMABLE, EVEN IF THE PHYSICAL OIL HAS INCREASED IN VALUE, AND ARE NOT NECESSARILY EXCLUDED BY EXCEMPTION CLAUSE AND IN MY EXPERIENCE FEW CHALLENGES ARE NOW MADE RE FORESEEABILTY OF HEDGING LOSSES WITH RESPECT TO SHIP OWNERS CJH Energy Ltd 12

13 HUGELY VOLATILE OIL PRICES MEAN THAT OIL TRADERS ALWAYS CONSIDER WHETHER TO HEDGE ASSUME ALL TRADERS CONSIDER HEDGING ESTABLISHED COMPANY HEDGING POLICY OFTEN SET BY BOARD. TAKE A LOOK AT COMPANY WEBSITE AND ANNUAL ACCOUNTS NO SET STRATEGY TO HEDGE A COMMODITY PRICE RISK BUT REASONABLE TO SELECT HEDGE TO MATCH AS BEST AS POSSIBLE THE PHYSICAL POSITION. HEDGE APPLES WITH APPLES NOT PEARS. BUT SOMETIMES BREACHES AND RESULTING AMENDMENTS TO HEDGE MAY CAUSE LOSSES IN HEDGES TO BE HIGHER THAN GAINS IN PHYSICAL CJH Energy Ltd 13

14 BUT NOT ALL COMPANIES END UP HEDGING, AND MANY DO NOT HEDGE 100% EXXON/MIDDLE EASTERN COMPANIES LACK OF UNDERSTANDING MEANS MAY CONSIDER IT TO BE RISKY OR SPECULATIVE - IN FACT GENERALLY MORE RISKY NOT TO HEDGE DECIDING NOT TO HEDGE IS AS IMPORTANT A DECISION AS TO DECIDE TO HEDGE TRADERS MAY HAVE EXPOSURE LIMITS ALLOWING THEM TO TRADE UNHEDGED TO THEIR LIMITS FUNDS REQUIRED FOR MARGIN CALLS, NEEDED TO TRADE REGULATED DERIVATIVES, MAY NOT BE AVAILABLE AND FORCE A TRADER TO HEDGE PART RATHER THAN ALL RISK CJH Energy Ltd 14

15 MANY OIL COMPANIES DO NOT HEDGE INDIVIDUAL DEALS BUT HEDGE GLOBAL RISK ACROSS ALL THEIR TRADING BOOKS MAY BE BALANCED ACROSS MARKETS MAY TRANSFER HEDGES FROM OTHER STRATEGIES HEDGING GLOBAL RISK CAN MAKE IT IMPOSSIBLE TO IDENTIFY INDIVIDUAL HEDGING TRANSACTIONS CAN BE DIFFICULT TO POINT TO INDIVIDUAL HEDGING AN ASSUMED HEDGING STRATEGY CAN BE CREATED FOR LITIGATION PURPOSES BY AN EXPERT CJH Energy Ltd 15

16 WHEN CONSIDERING DAMAGES IT IS IMPORTANT TO UNDERSTAND THE DIFFERENCE BETWEEN A HEDGE AND SPECULATION Hedging should reduce risk - speculation increases risk Hedging may become speculative if no longer against any underlying physical position rather than to manage risk or mitigation. Important to recognise whether hedging is actually speculative and in which case may not be allowable as part of damages.

17 Damages can comprise hedging losses rather than loss on the physical a real life example Cargo delayed by 3 months Cargo sold for Platts less US$ 2 per mt rather than Platts plus US$8 per mt Market moved up so cargo actually sold for more in AS IS than BUT FOR But hedges lost money because of rolling hedge into forward month, basis risk from hedging with different tools, and volume of hedge imperfect Claim for about US$ 5 million on a 70kt cargo of fuel oil Case settled just before coming to Singapore Court hedging never been tested under Singapore Law Basis risk difference between movement in hedge and physical price

18 FINAL THOUGHT SHOULD A COMMODITY TRADER, WHO NORMALLY HEDGES BUT CLAIMS THEY HAVE NOT ONCE A BREACH TAKES PLACE, BE DEEMED TO HAVE FAILED TO MITIGATE? SHOULD DAMAGES BE REDUCED IN ACCORDANCE WITH A SIMULATED HEDGING STRATEGY?

19 CATHERINE JAGO IS IN ARBITRATOR AND EXPERT IN OIL TRADING, SHIPPING, PRICING AND HEDGING OVER 33 YEARS EXPERIENCE IN THE OIL INDUSTRY FELLOW OF THE CHARTERED INSTITUTE OF ARBITRATORS, MEMBER OF LMAA AND SCMA ON ARBITRATORS PANEL FOR GCCIG (GENEVA) JUSTICE OF THE PEACE SINCE 1995 CHAIRMAN SINCE 2002 MEMBER OF ENERGY INSTITUTE CALLED TO THE BAR BY INNER TEMPLE 1997 GIVEN EVIDENCE ON MANY OCCASIONS IN HIGH COURT AND ARBITRATION PROCEEDINGS AND AVAILABLE AS AN ARBITRATOR BACKGROUND IN OIL TRADING, OPERATIONS, JOURNALISM, BROKING, MANAGEMENT CONSULTING, CREDIT CONTROL, ADVISED ON TRADING STRATEGY, RE-ORGANISATION, PERFORMANCE IMPROVEMENT PRAISED BY SOLICITORS, BARRISTERS, CLIENTS AND JUDGES ALIKE FOR HER INDEPENDENCE, INTELLIGENCE AND FAIR- MINDEDNESS AUTHOR OF GUIDE TO TRADING OIL PRODUCTS AND CONTRIBUTOR OF CHAPTERS TO THE OIL TRADING MANUAL AND OIL AND GAS TRADING

20 MANY THANKS FOR YOUR ATTENTION. FEEL FREE TO CONTACT ME FOR MORE INFORMATION CATHERINE JAGO FCIARB 0(44)

David Owen QC. David has all the qualities of a successful mediator. He is smart, patient, kind, attentive and thoughtful.

David Owen QC. David has all the qualities of a successful mediator. He is smart, patient, kind, attentive and thoughtful. CEDR Accreditation: CEDR Panel Member Since: 2003 2006 Languages: Location: English United Kingdom David has all the qualities of a successful mediator. He is smart, patient, kind, attentive and thoughtful.